Today's case is, we think (and certainly hope), unlike any
other case we have discussed in 2018. To begin with, Duntsch v.
State, 2018 Tex. App. LEXIS 10131, 2018 WL 6445369 (Texas Ct.
App. 5th Dist. Dec. 10, 2018), is an appeal from a criminal
conviction. Since we have droned on incessantly about how our
happiest days as a lawyer were spent prosecuting crooks, everyone
on the blog knows that we have first dibs on criminal cases. In
Duntsch, the issue was whether a criminal assault statute
could apply to a case of medical malpractice. The Texas court ended
up affirming a neurosurgeon's conviction for
"intentionally or knowingly causing serious bodily injury to
an elderly individual while using or exhibiting a deadly
weapon" – the "deadly weapon" being his hands,
surgical tools, and a medical implant. As described by the court,
the defendant neurosurgeon comes across as not only incompetent,
but also arrogant. Indeed, read a certain way, the court's
recital of the facts of the case portrays a sociopath.
Nevertheless, a criminal conviction for assault with a deadly
weapon against an actual surgeon, no matter how bad the
surgeon's conduct (and the court makes it sound bad bad bad
bad), seems unprecedented.

We will confine ourselves to the facts in the Texas appellate
decision, though this case has received extensive coverage. There
is an article in D Magazine calling the defendant
"Dr. Death." There are several accounts on the web. There
is a multi-part podcast devoted to this extraordinary story. One of
the themes running through these accounts is the alleged failure of
the medical system, in terms of credentialing, reporting, and
med-mal limitations. The moral of the tale, so we are told, is that
the criminal justice system was the last, best, necessary resort
after other systems failed to protect patients. You can decide for
yourself whether that moral is fitting here.

The particular offense involved back surgery on an elderly
woman. It is an understatement to say that the result was not the
desired reduction of pain. Rather, the patient's pain
dramatically increased. Even worse, the woman suffered from
"drop foot" and incontinence. It appears that the
defendant put the pedicle screw in exactly the wrong place. The
surgery was a sequence of terrible errors. "There were holes
where they shouldn't be in the bone." Further, there was
testimony that the defendant was distracted during the surgery by
the deteriorating condition of another back surgery patient, who
subsequently died. The defendant got into an argument as to whether
the other patient required a craniotomy. Meanwhile, the
defendant's surgical technique for the patient in front of him
on the operating table was, according to doctors and nurses present
during the surgery, abominable. One doctor characterized the
procedure as a "catastrophic surgical misadventure."

One of the eyewitnesses to the disastrous surgery was the device
representative. We have written in the past (
here, for example) on whether the presence of a device
representative during a surgery can present problems for the
manufacturer in a product liability case. But here, the device
representative's testimony was damning for the defendant
doctor. The rep said that surgery was "chaos from the
beginning," that the pedicle screw erroneously was placed into
soft tissue rather than bone, and that there was more bleeding
during the operation than there should have been.

The jury heard not just about the subject surgery, and not just
about the other back surgery that went fatally wrong and that
distracted the defendant, but also about several other surgeries
where the defendant committed awful malpractice. In one especially
sad case, the defendant operated on old friend and managed to turn
him into a quadriplegic. In another, a fellow surgeon described the
defendant as operating at the level of first or second year
neurosurgery resident. Multiple patients died from the
defendant's treatment. Think of how this evidence of other
catastrophic results played out at trial. Every day in the
courtroom the jurors must have seen injured people using crutches,
walkers, wheelchairs and worse. They must have also seen loved ones
overcome with grief and anger. Evidence of other acts is powerful
stuff. Sometimes it can be too powerful.

The evidence of other acts did not come only from victims. An
office manager who worked for the defendant acknowledged that the
defendant "had an unusual number of bad outcomes"
compared to other doctors for whom she had worked. She also
described an instance where the defendant had asked her to alter
some medical records after the fact. Perhaps even worse, a nurse
practitioner who was also an ex-girlfriend of the defendant was
quizzed about some incendiary emails the defendant had sent her,
including one where the defendant described himself as a
"stone-cold killer." She did not interpret the email to
reveal a criminal mind, but the jury was free to do so.

An expert doctor testified for the defense that the
defendant's errors were "known complications" that a
"poorly-trained surgeon could do," and that have, in
fact, occurred in the past. In other words, the defense added up to
arguing that the defendant was an idiot but not quite a
criminal.

After all the evidence rolled in, the jury convicted the
defendant. The sentence was life imprisonment. Let that sink in for
a moment.

The two key issues on appeal were whether the other terrible
surgery results should have been admitted into evidence and, most
fundamentally, whether the evidence was enough to support a finding
of criminal intent on the part of the defendant. The two issues
have a lot to do with one another, of course. As we said up top,
the criminal statute applies to someone who "intentionally or
knowingly causes serious bodily injury" to an elderly person.
The state did not claim that the defendant actually intended to
inflict harm on the patient. Consequently, the issue was one of
knowledge. A person acts "knowingly" with respect to a
result of his conduct if "he is aware that his conduct is
reasonably certain to cause the result." The court concluded
that a jury could reasonably find that the defendant was reasonably
certain that his conduct would seriously injure his patient
inasmuch as the defendant was aware of his recent track record of
inflicting extremely rare and serious complications on his surgery
patients, and was also told during the surgery in question that he
was botching the operation.

The prior surgeries came into evidence not merely to show that
the defendant was a rotten surgeon, but to show that the defendant
had the knowledge of those results in his head, and that such
knowledge added up to the requisite culpable state of mind (in law
school we learned to call it mens rea). As the prosecution
contended, the other acts here were contextual, not extraneous. The
court agreed, and held that the other surgeries were properly
admitted per Fed. R. Evidence 404(b). They were similar to the
surgery at issue, and they shed light on the defendant's state
of mind.

The defendant offered a pretty good argument that there is
something wrong with the fact that the evidence of the surgery in
question took up less than a day of trial, while the evidence of
the prior surgeries took up another twelve days. But the court
reasoned that the prior surgeries were probative on a highly
disputed point (the defendant's mental state). Moreover, the
trial court repeatedly instructed the jury that the prior surgeries
were to be considered "only ... in determining intent,
knowledge, motive, absence of mistake or lack of action of the
defendant, if any, alleged in the indictment in this case and for
no other purpose."

The appellate court also rejected the defendant's argument
that the "stone-cold killer" email was substantially more
prejudicial than probative. The prosecutor certainly emphasized
that email during closing argument. We can understand why the
prosecutor would do that, but use of evidence in closing argument
makes it that much harder to argue harmless error. The
prosecutor's bet paid off, given that the appellate court did
not find error. We probably would have gone the more prudent route
and kept mum about it in argument, trusting the jurors to seize
upon it during deliberations. Maybe that's why we are now a
hypercautious civil defense hack.

One of the three appellate judges in Duntsch dissented,
arguing that the evidence at trial did not prove the
defendant's "knowledge." The dissenter believed that
evidence of the prior bad surgeries at most showed what the
defendant should have known, not what he actually knew, about his
poor surgical skills. One passage in the dissent is particularly
persuasive: "Appellant was not on trial for being a doctor
generally or, more to the point, for being a doctor who lacked
adequate training or technique – neither of those things is a
crime. And, criminal trials are not reverse class actions."
The dissent makes other useful points, and suggests that the
evidence could have supported a finding of recklessness, which
would have been a lesser offense. But the dissent was only a
dissent, so the majority's affirmance of the conviction on the
most serious offence charged held sway. Interestingly, the dissent
agreed with the majority that there is no broad policy reason to
exempt physicians from the reach of the criminal code when medical
malpractice sinks to the defined level of culpability.

Duntsch is an extreme case. It is a memento
mori painted on the edge of tort law, reminding us of what can
happen when things go horrifically wrong.

This article is presented for informational purposes only
and is not intended to constitute legal advice.

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Just days before a potentially landscape-altering hearing in a Miami federal courtroom at which lawyers were going to be forced to testify about the legal advice they had given their clients during the course of an internal investigation, the parties quietly backed into their own corners and the hearing was cancelled.

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